Monthly Archives: March 2012

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(Specious “Privacy” to Evade Attention and Reform)

Most of us are by now aware that the acronym SLAPP refers to “Strategic Litigation Against Public Participation”—in its purest form, a lawsuit filed to silence speech about public issues, brought by one who finds the speech detrimental to his personal interests.

I would add to the quiver of systematic weapons against self-government the SPEAR— “Specious ‘Privacy’ to Evade Attention and Reform.” Instead of a private person’s using the formidable threat of litigation to discourage constitutionally protected speech by others, the SPEAR involves the government itself using the quieter but equally effective mechanism of secrecy—denial of access to information in public records—to keep people from effectively scrutinizing its faults and foibles, or from even corresponding and comparing notes with one another on the need for reform.

The notion that the core policy or most legitimate purpose of public records access laws is to shed light on government activities and not on private lives is easily said, but sets up a fallacious mutual exclusiveness. In many cases one simply cannot evaluate government activities without knowing, with some particularity, whom they benefit or burden, and how. Moreover, a scheme of protection that allows the government to deem facts “private” and exempt from disclosure simply because they involve identifiable individuals may or may not benefit those very individuals (who are often never consulted or even informed regarding the denial), but may just as easily benefit the desire of government to have its activities and their impact on the individual kept quiet.

Currently, for example, I’m aware of a state agency that has a list of companies that it has dealt with in certain transactions and that has told one of the firms that, on privacy grounds, it may not have access to the list, since some of the companies may be sole proprietors whose business address is also their home address. The purpose of the requester is precisely to contact all others who have had the same transactional relationship with this agency in order to compare notes and see if there is common ground for a collective approach to the agency or perhaps the Legislature that would solve certain problems that the requester has encountered and suspects may be a common experience. In other words, the requester wants to exercise his constitutionally protected rights of assembly and petition if is a sufficient assemblage of likeminded petitioners. The agency knows this, and its firm assertion of a “privacy” basis for refusing to disclose the requested information is forcing the requester to have to hire a lawyer and sue to get the information.

One can easily imagine the same experience where all those involved are truly individuals, affected in their personal rather than business capacities, and thus the privacy label is all the more unhesitatingly applied. One obvious example is the juvenile court system, in which parents who have had their children removed from their custody, not always for entirely just or wise reasons, and sometimes with terrible results, are isolated from one another and deprived of the collective deliberation that might lead to reform.

Likewise third parties—public interest organizations, the press or even elected officials—are disabled from documenting how a variety of social service or other government programs are operating, and particularly from doing so in a thoughtful, anecdotally resonant way, because they are prevented from contacting the human beings who are the ostensible beneficiaries of these programs, even to ask them if they would be willing to share their experiences and shed light on the efficacy of the programs.

In short, a policy that makes individuals inaccessible to inquiry and discussion on privacy grounds may or may not serve their interests, but unquestionably makes government activity that much more opaque to scrutiny.

As an attempt to address this problem, Contra Costa County has enacted, as part of its Better Government Ordinance, the following policy:

Article 25-4.6 Public Records Access

25-4.602 Confidentiality waiver request

Whenever a county officer asserts, as a justification for nondisclosure of a public record, the exemption protecting personal privacy in Government Code section 6254(c), the exemption for names and addresses of crime victims in Government Code section 6254(f)(2), the exemption for taxpayer information in Government Code section 6254(i), any confidentiality or privilege statute referenced under Government Code section 6254(k) the exemption for personal financial data in Government Code section 6254(n), and any other claimed exemption based upon the personal or proprietary interests of a private natural or corporate person, the officer shall cooperate with the requester’s efforts to communicate with the subject of the record as follows, upon request, if the requester fulfills the related terms and conditions.

(a) If the requester is seeking information concerning an unknown number of persons, the officer or designee shall inform the requester of the number or approximate number of persons to whom the public record request pertains. If ascertaining that number involves itemized labor or other costs reflecting more than ten minutes of staff time in research, the requester may be required to pay those itemized costs.

(b) The requester shall prepare one stamped envelope for each of the persons sought to be contacted, with the requester’s return address on the envelope. Within the envelope the requester shall place a letter explaining why the information is being sought and asking the person to contact the requester. The requester may also include a self-addressed, stamped envelope for that purpose. The envelope shall be presented to the officer for mailing.

(c) The officer or designee shall affix to each envelope so received the mailing address of the person who is the subject of the information request and shall mail it, provided that a mailing address is included in the officer’s records. Any staff time required to do so shall be required to be paid by the requester, at the pro rata hourly rate of the employee addressing the envelopes.

(d) If the subject of the record signs a privacy waiver, the record shall be released to the requester if it could lawfully be released to the person authorizing release.

(e) If the subject of the record is legally incompetent to waive privacy interests, the officer shall address the requester’s envelope to the parent, guardian, conservator or judicial officer, as the case may be, if known, with the duty and authority to make such decisions for the incompetent person.

(f) If, in the judgment of the department head, the requester is someone who may misuse the information, or if the records or the subjects of the records are of a sensitive nature, the department head may include in the mailing a caution that the individual need not waive his or her privacy interests. The requester shall be provided a copy of the caution and an opportunity to include a response in the mailing.

The point is that blanket confidentiality or even “opt in/opt out” choices do not and should not exhaust the possibilities for protecting privacy in public records. In fact, given that privacy is a personal right that individuals often exercise in a contingent, selective way, based on nuanced circumstances of context, time, and estimates of their own interest and advantage, an ad hoc informed consent regime such as that adopted by Contra Costa County is one that makes the relevant individual’s informed judgment, not bureaucratic policy, sovereign. Absolute barriers are certainly easiest to administer, but they are also most easily used to keep people from communicating with one another for their mutual advantage—and that of the public as a whole.

DOCUMENTATION:

BACKGROUND:
In or about 2002, the District entered into a “Master Benefits Agreement” (Agreement) with unions representing its employees concerning hospital-medical, dental, vision group coverage, group life insurance coverage, and the District’s employee assistance program. The unions are referred to in the Agreement as the “Exclusive Representatives” of the employees. Pursuant to the Agreement, the District was to convene, and the Exclusive Representatives were to participate in, the JLMBC. The JLMBC’s purpose was to “contain the costs of the District’s Health Benefits Program while maintaining and, when feasible, improving the quality of the benefits available to employees.”

Prior to adoption of the Agreement, the District’s six bargaining units each had a separate article in their collective bargaining agreements that addressed health benefits. Those articles were inconsistent, resulting in coverage disparities. One of the Agreement’s purposes was to ensure common benefits throughout the District. Under the Agreement, the District’s health benefits program consisted of “group benefit plans recommended by the Joint Labor/Management Benefits Committee and approved by the Board under which eligible District employees (and their eligible dependents) receive hospital, medical, dental, and vision care coverage. The purpose of the Health Benefits Program is to provide quality health care to the District’s employees, retirees, and their eligible dependents and survivors.”

The JLMBC was composed of “one voting and one non-voting District Member” (District Members); six “Employee Members,” one from each of the Exclusive Representatives; and the “Chair” who was to be nominated by the president of the Los Angeles College Faculty Guild and confirmed by a simple majority of the regular voting members. Each Exclusive Representative could appoint nonvoting members in proportion to the size of each bargaining unit. The JLMBC had authority to:

“1. review the District’s Health Benefits Program and effect any changes to the program it deems necessary to contain costs while maintaining the quality of the benefits available to employees (this includes, but is not limited to, the authority to substitute other plans for the District’s existing health benefits plans);

“2. recommend the selection, replacement, and evaluation of benefits consultants;

“6. study recurring enrollee concerns and complaints and make recommendations for their resolution;

“7. participate in an annual review of the District’s administration of the Health Benefits Program;

“8. review and make recommendations about the District’s health benefits budget; and

“9. if health care legislation that necessitates modification of the District’s Health Benefits Program is enacted before the termination of this agreement, assess the effects of such legislation and make recommendations to the District and the Exclusive Representatives about appropriate action to take.”

Any action taken by the JLMBC required approval by the affirmative vote of the voting District Member and all but one of the voting Employee Members at a meeting at which a quorum was present. The Agreement provided that a quorum consisted of the voting District Member and any five voting Employee Members. The JLMBC had to submit any proposed changes to the board of trustees (presumably the District’s board of trustees) (Board) for its consideration. In order to continue to provide quality health care to the District’s employees, retirees, and eligible dependents at a reasonable and sustainable cost, the JLMBC annually had to report to the Board on its actions and activities to mitigate increases to the cost of the health benefits program.

In 2002, the District adopted board rule 101702.10, which provided, “The District shall convene a Joint Labor/Management Benefits Committee (JLMBC) as prescribed by the Master Agreement between the District and the exclusive representatives of its employees. The role, composition, and authority of the Committee are specified in Section IV of the Master Agreement. Section IV of that Agreement (as it now reads or as it may be revised by the parties from time to time) is, by this reference, incorporated herein as if set forth in full.”

McKee, on behalf of himself and Californians Aware, submitted a letter to the Board and the JLMBC asserting that the JLMBC was a “legislative body” of the District, which had been holding meetings that did not conform to the public notice and open meeting requirements of the Brown Act. McKee demanded that the District publicly acknowledge in a letter to him that the JLMBC was a “legislative body” under the Brown Act and that all future JLMBC meetings would comply with the Brown Act. Dr. Susan Aminoff, the Chair of the JLMBC, responded that the JLMBC was not a “Brown Act committee.”

Petitioners filed their verified petition for writ of mandate, an injunction, and declaratory relief for the JLMBC’s alleged violations of the Brown Act. In their petition, petitioners alleged, among other things, that a controversy existed between petitioners and the JLMBC concerning “(1) the legal rights of members of the public to proper and timely notice of the business to be 977*977 transacted by the JLMBC and to an opportunity to provide input to the JLMBC prior to or during the JLMBC’s discussion of that business; and (2) the ministerial duties imposed upon the JLMBC by the Brown Act.” The petition sought a declaration that the JLMBC is a “legislative body” under the Brown Act and a peremptory writ of mandate ordering the JLMBC to comply with the Brown Act’s requirements. Petitioners filed a motion for “Peremptory Writ of Mandate and for Declaratory Relief.”

The trial court denied petitioners’ petition for writ of mandate. In its order denying the petition, the trial court referred to the California Attorney General’s publicly issued opinion that the JLMBC is not required to comply with the Brown Act. The trial court stated that the petition implicated two statutory schemes—the Brown Act and the EERA. According to the trial court, the purpose of the Brown Act, an open meeting law, is to require local entities to conduct their business in public, and the purpose of the EERA is to require public school districts, including community college districts, to recognize and bargain collectively with labor unions representing school district employees. The trial court noted that there is a “tension” between the open meeting requirements of the Brown Act and the closed-door collective bargaining provided by the EERA. The trial court opined that the Legislature resolved that tension with section 3549.1, subdivision (a), which provides that meetings and negotiations between management and labor are not subject to the Brown Act.

The trial court rejected petitioners’ attempt to distinguish meetings conducted by the JLMBC from labor-management negotiations and observed that the District and its employees’ unions had agreed to divide their negotiations into subgroups, one of which was the “particularly complex” subject of health benefits. The trial court said that the parties created the JLMBC, “to filter out the changes that are to be brought to the negotiating table by requiring some degree of consensus by both labor and management members of the JLMBC in order to submit a change to the board of trustees for its consideration.” The trial court concluded, “The activities of the JLMBC are part of the collective bargaining process and the intent of the legislature is that those activities are not to be done in public.”